Citation NR: 9707666
Decision Date: 03/10/97 Archive Date: 03/25/97
DOCKET NO. 94-47 001 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a rash/fungus.
2. Entitlement to a permanent and total disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Hancock, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1951 to
November 1954; he also had prior service in the Army National
Guard.
This appeal arises from an August 1994 rating decision by the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO), which denied the veteran’s claim for
service connection for a rash/fungus, and also his claim for
entitlement to nonservice-connected pension, including
consideration under 38 C.F.R. § 3.321(b)(2).
The issue of entitlement to a permanent and total disability
rating for pension purposes is addressed in the Remand
following this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he is entitled to
service connection for a rash/fungus.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1996), has reviewed and considered all of the evidence and
material of record in the veteran’s claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the veteran’s claim for service connection for a
rash/fungus is not well grounded, and is accordingly denied.
FINDING OF FACT
The appellant has not met the initial burden of presenting
evidence to justify a belief by a fair and impartial
individual that his claim for service connection for a
rash/fungus is plausible or capable of substantiation.
CONCLUSION OF LAW
The veteran’s claim for service connection for a rash/fungus
is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As stated above, the veteran has claimed entitlement to
service connection for a rash/fungus. The evidence does not
demonstrate that such a disability is related to the
veteran’s period of active service. Since service connection
cannot be granted for a disability that is not currently
shown to be related to the veteran’s period of service, the
Board must accordingly find that the veteran’s claim for
service connection is not well grounded and, pursuant to the
holding of the United States Court of Veterans Appeals
(Court) in Edenfield v. Brown, 8 Vet.App. 384 (1995) (en
banc), must be denied.
The veteran’s service medical records reveal that reports of
two medical examinations, dated in August 1951 and November
1951, both indicate that the clinical evaluation of the
veteran’s skin was found to be normal. A March 1953
treatment record indicates that the veteran complained of
recurrent attacks of hives since October 1952. The report
further shows that the veteran was then under observation to
determine the etiology of his allergy, but without success.
Upon referral to an allergy clinic, the veteran was examined,
also in March 1953. This examination report shows that the
veteran complained of “itchy whelps” in his popliteal areas,
thighs, groin, abdomen, lower back, anus, and ankles. The
veteran reported that this initially occurred infrequently,
about once a month, and lasted between two and three days.
In January 1953, the veteran noted an increase in the
frequency of the occurrences, to the point of a daily
occurrence. The condition was noted to be relieved by a
histamine antagonist. The veteran was found not to suffer
from hay fever, asthma, or eczema. The diagnosis was chronic
urticaria and angioneurotic edema. The examiner indicated
that foods were the “most likely cause” for his skin
condition. The Board notes that this March 1953 treatment
was the only inservice treatment received by the veteran
regarding any skin-related conditions. Additionally, reports
of two medical examinations, compiled in conjunction with the
veteran’s separation from service, dated in August 1954 and
November 1954, both show that clinical evaluations of his
skin were normal.
The veteran’s postservice medical records, both private and
VA, are devoid of evidence of treatment for a rash or fungus
disability. The report of a July 1994 VA examination reveals
that the veteran neither gave a history of a skin disorder
nor complained of one. Examination of the veteran’s skin
did, however, reveal a finely scaly rash on his feet. A
diagnosis of tinea pedis (also known as athlete’s foot) was
supplied by the examiner.
The threshold question that must be resolved is whether the
veteran has presented evidence that his claim for service
connection is well grounded. See 38 U.S.C.A. § 5107(a);
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well
grounded claim is a plausible claim, meaning a claim which is
meritorious. See Murphy, 1 Vet.App. at 81. A mere
allegation that the claims are service connected is not
sufficient; the appellant must submit evidence in support of
his claim which would justify a belief by a fair and
impartial individual that the claim is plausible.
38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609,
611 (1992). In that regard, a lay person is not competent to
make a medical diagnosis, or to relate a given medical
disorder to a specific cause. See Espiritu v. Derwinski, 2
Vet.App. 492, 494 (1992); see also Gregory v. Brown, 8
Vet.App. 563 (1996).
The Court, in a case in which a veteran sought service
connection for hypertension, found that, “[b]ecause of the
absence of any evidence of current hypertension...appellant’s
claim is not plausible and, therefore, not well grounded.”
Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). See also
Brammer v. Derwinski, 3 Vet.App. 223, 225 (1995) (absent
proof of a present disability there can be no valid claim).
There must also be evidence of incurrence or aggravation of a
disease or injury in service and evidence of a nexus between
the inservice injury and the current disability. (emphasis
added). See Caluza v. Brown, 7 Vet.App. 498 (1995).
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in
wartime line of duty. 38 U.S.C.A. § 1110 (West 1991).
In addition, if a disorder noted during service is not shown
to be chronic, continuity of symptoms sufficient to establish
the chronic character of the disorder after service must be
present for an appropriate grant of service connection. See
38 C.F.R. § 3.303(b) (1996).
The three elements of a “well grounded” claim for service
connection are: (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation dictates;
and, (3) a nexus, or link, between the inservice disease or
injury and the current disability as provided by competent
medical evidence. See Caluza, supra; see also 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303 (1996). This means that there must
be evidence of disease or injury during service, a current
disability, and a link between the two. Further, the
evidence must be competent. That is, an injury during
service may be verified by medical or lay witness statements;
however, the presence of a current disability requires a
medical diagnosis; and, where an opinion is used to link the
current disorder to a cause during service, a competent
opinion of a medical professional is required. See Caluza,
supra at 504.
After a review of the evidence, the Board concludes that the
veteran’s claim of entitlement to service connection for a
rash/fungus is not supported by the record. The medical
evidence does not demonstrate that the only skin-related
condition diagnosed many years following the veteran’s
separation from service, specifically, tinea pedis, is in any
manner related to the veteran’s active service. In addition,
the clinical evidence, as it relates to the veteran’s current
claim for service connection, indicates that the veteran was
last treated for a skin condition in 1953, approximately 44
years ago. This suggests that the veteran’s inservice, most
likely food-related, skin allergy was acute and transitory in
nature, and resolved without chronic residuals. 38 C.F.R. §
3.303(b). Furthermore, the Board notes that no physician has
attributed the veteran’s current tinea pedis to his remote
period of active service.
Since service connection cannot be granted for a disability
which is not shown by competent evidence to be related to
service, the Board must find that the veteran has not
submitted evidence sufficient to justify a belief by a fair
and impartial person that service connection for a
rash/fungus could be granted, as is required under the
provisions of 38 U.S.C.A. § 5107(a). The Board accordingly
finds that his claim for service connection for such a
condition is not well grounded and is therefore denied.
Where a claim is not well grounded it is incomplete, and VA
is obligated under 38 U.S.C.A. § 5103(a) (West 1991) to
advise the claimant of the evidence needed to complete his
application. See Robinette v. Brown, 8 Vet.App. 69 (1995).
In this instance, the Statement of the Case, dated in October
1994, informed the veteran that his claim was denied because,
though the veteran received treatment for a skin condition
during his period of active service, his disorder was shown
to be temporary in nature and resolved with treatment, and
with no residuals shown at the time of separation from
service or by the recent medical evidence. However, if the
veteran is able to present medical evidence attributing his
current tinea pedis to service, he should petition to reopen
the claim.
ORDER
Service connection for a rash/fungus is denied.
REMAND
The veteran and his representative also contend, in essence,
that the veteran’s various disabilities, considered together,
are more than sufficient to establish a permanent and total
disability rating for pension purposes.
VA has a duty to assist the appellant in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1996).
The veteran’s disabilities, pursuant to an August 1994 rating
decision, were specified as follows: migraine headaches (30
percent); maxillary sinusitis/allergic rhinitis (10 percent);
and rash/fungus, left elbow pain, left shoulder pain, neck
pain, low back pain, hypertension, history of chronic
obstructive pulmonary disease, anxiety attacks, and tinea
pedis, all zero percent. The combined rating was 40 percent.
The veteran, in February 1994, in response to a letter from
VA, indicated that he had applied for some benefit through
the Social Security Administration (SSA). However, the
record does not contain documentation supporting an award (if
this in fact occurred), nor is the medical evidence used to
arrive at such a determination of record. Under 38 U.S.C.A.
§§ 5106, 5107(a) (West 1991), VA’s duty to assist
specifically includes requesting information from other
Federal departments or agencies. It has been essentially
resolved in various cases that, although SSA decisions are
not controlling for VA purposes, they are pertinent to the
adjudication of a claim for VA benefits and VA has a duty to
assist the veteran in gathering such records when put on
notice that the veteran is receiving SSA benefits. See
Collier v. Derwinski, 1 Vet.App. 413 (1991); Murincsak,
supra; Masors v. Derwinski, 2 Vet.App. 181 (1992) and Brown
v. Derwinski, 2 Vet.App. 444 (1992). Therefore, even though
it is not apparent from the evidence of record whether or not
the veteran is in fact currently receiving SSA disability
benefits, as such records, if existing, could contain medical
evidence in support of the veteran’s pension claim, the Board
believes that such records are appropriately to be obtained,
if available, prior to resolution of the veteran’s claim for
entitlement to a permanent and total disability rating for
pension purposes.
The report of a July 1994 VA examination revealed, in
pertinent part, diagnoses of arthralgia at multiple
locations, probable degenerative arthritis, chronic low back
pain with no evidence of radiculopathy. The examination did
not note, however, at which degrees of motion there was pain,
that is, functional limitation of motion. In addition, the
August 1994 RO rating decision also listed, as noted above,
left elbow pain, left shoulder pain, and neck pain, as some
of the veteran’s disabilities.
In assigning a disability evaluation, VA must consider the
effects of the disability upon ordinary use, and the
functional impairment due to pain, weakened movement, excess
fatigability, or incoordination. DeLuca v. Brown, 8 Vet.App.
202 (1995); Schafrath v. Derwinski, 1 Vet.App. 589 (1991); 38
C.F.R. §§ 4.40, 4.45 (1996). In addition, pain on active and
passive motion should be sufficiently documented. See
38 C.F.R. § 4.59 (1996); Arnesen v. Brown, 8 Vet.App. 432
(1995).
In DeLuca, supra, the Court held that 38 C.F.R. §§ 4.40, 4.45
were not subsumed into the diagnostic codes under which a
veteran’s disabilities are rated. Therefore, the Board has
to consider the “functional loss” of a musculoskeletal
disability under 38 C.F.R. § 4.40, separate from any
consideration of the veteran’s disability under the
diagnostic codes. DeLuca, 8 Vet.App. at 206 (1995).
Functional loss may occur as a result of weakness or pain on
motion of the affected body part. 38 C.F.R. § 4.40. The
factors involved in evaluating and rating disabilities of the
joints include: weakness; fatigability; incoordination;
restricted or excess movement of the joint; or pain on
movement. 38 C.F.R. § 4.45. These factors do not
specifically relate to muscle or nerve injuries independently
of each other, but rather, refer to overall factors which
must be considered when rating the veteran’s joint injury.
DeLuca, 8 Vet.App. at 206-07 (1995).
Therefore, the Board finds that this issue must be remanded,
in part, in order to comply with the holding in DeLuca,
supra, and to clarify any and all disabilities from which the
veteran currently suffers in order to more accurately
evaluate the nature and severity of the veteran’s
disabilities and the extent to which occupational impairment
is produced by such.
While the report of the July 1994 VA examination contained a
diagnosis of a history of “COPD” [chronic obstructive
pulmonary disease], examination of the veteran’s respiratory
system was normal. On his November 1994 VA Form 9, Appeal to
Board of Veterans’ Appeals, the veteran indicated that he had
been under the care of two private physicians for his heart
condition; the veteran also requested that treatment records
from these physicians be associated with his file.
Additionally, in a letter from the veteran to VA, received in
November 1994, the veteran indicated that he had been
hospitalized in Birmingham, Alabama for a period of ten days
“in the 1980’s.” The Board notes that while a letter was sent
from the RO to the veteran in December 1994 in an effort to
allow him to submit the complete address for each
physician/hospital, a review of the evidence of record fails
to indicate that the veteran responded. However, a December
1994 letter from the veteran to the RO states that he had
signed all types of release forms so that VA could obtain
medical records. Several VA Forms 21-4142, Authorization for
Release of Information, were received by VA in February 1994;
however, these authorization forms were incorrectly completed
by the veteran. As such, it is the opinion of the Board that
the veteran should be afforded another opportunity to submit
these authorization forms, in a correct manner, as well as any
other evidence, including medical records, that have not
previously been received by VA in support of his claim. The
point of emphasis here is in assisting the veteran in
identifying, and VA ultimately obtaining, any records of
pertinence to his claim. The veteran notified the St.
Petersburg, Florida RO in May 1995 that he had moved to
Mississippi, and requested that his records be transferred to
the Jackson, Mississippi RO.
The Court has rendered several decisions which impact
significantly on claims for pension benefits. In Roberts v.
Derwinski, 2 Vet.App. 387 (1992), the Court held that each
disability in a pension case must be assigned a percentage
rating and the RO should discuss the diagnostic codes which
it utilized in reaching its decision. (emphasis added). In
Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court held
that a pension claim must be considered under both the
“average person” standard delineated in 38 U.S.C.A. § 1502(a)
(West 1991); 38 C.F.R. § 4.15 (1996) and the unemployability
standards set forth in 38 C.F.R. §§ 3.321, 4.17 (1996).
Therefore, to ensure that VA has met its duty to assist the
claimant in developing the facts pertinent to the claim and
to ensure full compliance with due process requirements, the
case is REMANDED to the RO for the following development:
1. The RO should contact the veteran and
inquire as to whether he has applied for
Social Security disability benefits
and/or whether he is currently in receipt
of Social Security benefits. If so, the
RO should obtain such Social Security
decision and the clinical records used in
making such determination.
2. The RO should notify the veteran that
he may submit additional evidence and
argument, such as medical treatment
records, in support of his claim.
Specifically, the RO should again allow
the veteran the opportunity to submit, in
a proper manner, VA Forms 21-4142,
Authorization in Release of Information,
in order to enable VA to seek the private
physician and private hospital records,
discussed above. After securing any
necessary release, the RO should attempt
to obtain records of any treatment
identified by the veteran.
3. The RO should accord the veteran
special VA examinations, in order to
ascertain the current nature and status
of each of his chronic disabilities
and/or physical conditions. All
appropriate laboratory and other testing
should be accomplished at this time. The
examiners should set forth findings and
opinions concerning the extent to which
occupational and social impairment is
experienced by reason of any identified
disabilities or conditions. All
findings, and the reasons and bases
therefor, should be set forth in a clear,
comprehensive and legible manner on the
examination reports. The claims folder
is to be made available to each examiner
prior to evaluation of the veteran.
Examinations should include, but not
necessarily be limited to, a VA
orthopedic examination which should seek
to ascertain the nature and severity of
the appellant’s orthopedic difficulties,
including the effects of any disability
upon ordinary use, and the functional
impairment due to pain, weakened
movement, excess fatigability, or
incoordination. See DeLuca, supra.
Active and passive ranges of motion
studies should be conducted. The
expected range of motion should also be
reported. Arnesen, supra. Additionally,
the examiner should be asked to express
an opinion on whether pain could
significantly limit functional ability.
This determination should, if feasible,
be portrayed in terms of the additional
range of motion loss or limitation of
function.
4. The RO should schedule a VA social
and industrial survey to assess the
veteran’s employment history and day-to-
day functioning, as well as his prospects
for obtaining and retaining gainful
employment. A written copy of the report
should be inserted into the claims
folder.
5. Thereafter, the RO should
readjudicate the veteran’s claim in light
of additional evidentiary development.
If any change in the ratings assigned for
the veteran’s disabilities as of August
1994 is warranted by the new evidence, or
if the veteran is found to have any
ratable disability not evaluated at that
time, a new rating decision should be
prepared to ensure that each of his
disabilities has been assigned a rating
pursuant to VA’s Schedule, 38 C.F.R. Part
4 (1996); Roberts v. Derwinski, 2
Vet.App. 387 (1992). The evaluation
assigned for the veteran’s disabilities
should be combined under the combined
ratings table of the Schedule. 38 C.F.R.
§ 4.25 (1996). The RO should then
consider whether the “average person”
test, as identified by the Court, and as
provided under 38 U.S.C.A. § 1502(a)(1)
(West 1991) and 38 C.F.R. § 4.15 (1996),
is applicable. Talley v. Derwinski, 2
Vet.App. 282 (1992); Brown v. Derwinski,
2 Vet.App. 444 (1992). If the benefit
sought on appeal remains denied, the RO
should consider whether both the
percentage requirements under 38 C.F.R. §
4.16 (1996) and the permanency
requirements under 38 C.F.R. § 4.17
(1996) are met and, if so, whether the
veteran is unemployable as a result of
what the Court has referred to as
“lifetime” disabilities. Brown, 2
Vet.App. at 497.
After completion of the requested development, the case
should be reviewed by the originating agency. If the
decision remains adverse to the veteran, he and his
representative should be furnished a supplemental statement
of the case (SSOC), which should set forth an explanation of
the RO’s latest deliberations under all of the foregoing
criteria of the “average person” and “unemployability”
standards. This SSOC should also contain the schedular
criteria under which each of the veteran’s ratable
disabilities has been evaluated. The veteran should be
provided the applicable time within which to respond.
Thereafter, the case should be returned to the Board for
appellate consideration, if otherwise in order. Thereafter,
the case should be returned to the Board, if in order. The
Board intimates no opinion as to the
ultimate outcome of this case. The appellant need take no
action unless otherwise notified.
BARRY ANDERSON
Acting Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand appended to
the Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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